BERMUDA MONETARY AUTHORITY CONSULTATION PAPER INSURANCE AMENDMENT ACT 2014

BERMUDA MONETARY AUTHORITY
CONSULTATION PAPER
INSURANCE AMENDMENT ACT 2014
OCTOBER 2014
TABLE OF CONTENTS
I.
II.
INTRODUCTION ....................................................................................................... 3
PROPOSED AMENDMENTS TO THE INSURANCE ACT 1978 ....................... 4
DECLARATION OF COMPLIANCE – SECTION 15A ....................................... 4
PUBLICATION OF THE DECLARATION OF COMPLIANCE – SECTION 17A ........ 5
MATERIAL CHANGES– SECTIONS 30JA & 30JB ............................................ 5
OTHER MISCELLANEOUS AMENDMENTS ..................................................... 6
III.
HOUSEKEEPING AMENDMENTS TO THE INSURANCE ACCOUNTS
REGULATIONS 1980 AND INSURANCE RETURNS AND SOLVENCY
REGULATIONS 1980............................................................................................. 7
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I.
INTRODUCTION
1. The Bermuda Monetary Authority (“the Authority”) is proposing to amend the
Insurance Act 1978 (“the Act”) and the accompanying Regulations by issuing the
Insurance Amendment Act 2014 (“the Bill”) for consultation with the insurance
industry. The Bill seeks to address the following broad issues:
a. Enhance the scope of certain provisions within the Act for more effective
supervisory oversight;
b. Provide clarity on certain provisions so as to assist interpretation;
c. Effect changes to the Act that were previously consulted upon; and
d. Housekeeping changes
2. The views of the insurance industry and of other interested persons on the
proposals set out in this Paper and Bill are invited. Comments should be sent to
the Authority, addressed to [email protected] not later than 31st October, 2014.
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II.
PROPOSED AMENDMENTS TO THE INSURANCE ACT 1978
Declaration of Compliance – Section 15A
3. The Authority is proposing to add a new section to the Act to create a declaration of
compliance with the Minimum Criteria for Registration, the Minimum Margin of
Solvency (“MSM”) for all insurers registered under Section 4 of the Act, and the
Enhanced Capital Requirement (“ECR”) for Class 3A, Class 3B, Class 4, Class C,
Class D and Class E insurers.
4. This declaration will be an enhancement to the current declaration submitted by
insurers as stated in the Notice on the Code of Conduct (“the Code”) dated May
2011. The Notice states that as part of the evaluation of insurers’ compliance with
the Code, “every registered (re)insurer shall confirm with the submission of its
annual statutory financial return that its board, assisted by management, has
reviewed the provisions of the Code and has determined that the (re)insurer has
complied with those provisions based on the nature, scale and complexity of its
operations.” The new declaration, which supersedes the one described in the
Notice, will facilitate the required declaration of compliance with the Code through
the Minimum Criteria for Registration.
5. The declaration of compliance, which will include the MSM and ECR, requires
insurers to state whether or not they are in compliance with the regulatory capital
requirements but it will not require them to disclose the amounts of the MSM or
ECR.
6. The declaration of compliance would assist the Authority in exercising its risk-based
supervisory regime more efficiently by acting as part of an early warning system that
would allow supervisory resources to be focused on insurers with particular issues
surrounding compliance with these requirements.
7. The declaration of compliance would be submitted at the same time as the statutory
financial return (“SFR”) although it would not be considered part of the SFR filing.
The declaration must be signed by two directors of the insurer and submitted within
the relevant filing date from the end of the financial year of the class to which it
relates as per section 17 (4) of the Act, or such longer period as the Authority may
determine on the application of the insurer. Insurers would incur civil penalties if the
declaration is not filed in the prescribed time. It is proposed that the declaration of
compliance will take effect on the date the proposed amendment is passed in
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Parliament with insurers providing their first submission in 2015 for the 2014
financial year.
Publication of the Declaration of Compliance – Section 17A
8. In its 2012 Consultation Paper titled, “Enhancements to the Regulatory and
Supervisory Regime for Commercial Insurers”, the Authority initially published a
proposal “ to require commercial insurers 1 and insurance groups to publicly
disclose their compliance with the MSM and ECR and any material breach of the
MSM or ECR”. The Authority subsequently amended its position based on
stakeholder feedback that insurers disclose their compliance through the notes to the
financial statements filed under section 17A of the Act.
9. Upon further consideration of the issue, the Authority proposes to address the
disclosure of insurers’ compliance with the regulatory capital requirements through
the publication of the declaration of compliance as proposed in section 15A. To
facilitate this requirement, the Authority proposes to amend section 17A (6) of the
Insurance Act to allow it to publish the declaration for those insurers captured under
this section.
Material Changes– Sections 30JA & 30JB
10. The Authority proposes to make amendments to section 30JA and 30JB of the Act
to provide clarity and/or enhanced scope to the Material Changes provisions in the
Act.
11. The specific amendments are as follows:
a. Under section 30JA (1)(a), schemes covering acquisition or transfer of
business under section 25 of the Act or Section 99 of the Companies Act
1981 are reported as material changes. The Authority proposes to broaden
the reporting requirement to cover schemes of arrangements under section 99
that affect persons licensed under the Act. The Authority believes that these
schemes should be included as material changes that need to be reported to
the Authority.
b. The Authority proposes to include in section 30JA(1) an additional provision
to cover disposal or sale of the insurance operations.
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Commercial insurers – Class 3A, Class 3B, Class 4, Class C, Class D, and Class E insurers.
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c. The Authority is amending section 30JA (1) (f) by removing the word “and”
to read “compliance or internal audit”. This change clears up any ambiguity
surrounding the outsourcing notification requirement when any one of the
functions is outsourced, rather than being construed as notification when the
functions collectively are outsourced.
d. The Authority proposes to amend section 30JB (4) (b) by replacing the
words “fourteen days” with “thirty days”. Since implementing the
requirements under section 30JA, the Authority has found that given the
complexities of certain material changes, 30 days is a more reasonable time
period to appropriately evaluate these transactions.
Other Miscellaneous Amendments
12. The Authority proposes to expand the scope of section 31B to cover and apply
consistently to all commercial insurers, instead of only Class 3B and Class 4
insurers. Therefore, the section will cover Class 3A, Class 3B, Class 4, Class C,
Class D and Class E insurers.
13. The Authority proposes to include in section 32(1) a provision where there is
significant risk that the insurer may be unable to meet its obligations to
policyholder. This provision further strengthens the policyholder protection
framework by allowing the Authority to intervene where it believes that the
insurer may be unable to meet its policyholder obligations. Such a situation may
not necessarily mean that the insurer is at risk of insolvency, however, its ability
to meet policyholder obligations at a particular point in time could be hampered
by factors which may be extraneous to its operations and/or temporary in nature.
14. The Authority proposes to expand the scope of section 56 by including section 27 of
the Act with section 56 (5)(b) as one of the provisions where the Authority can
modify or exempt upon application from the insurer, actuarial declaration of longterm liabilities. Presently, the Authority can modify or exempt, upon application
from an insurer, the opinion of the loss reserve specialist. The inclusion of section 27
provides this same facility for the actuarial declaration for long-term liabilities.
The Authority also proposes to amend the title of Section 56 by deleting the word
“accounting” to broaden the nature of the provisions captured within the section.
15. The Authority issued its Consultation Paper titled “Repeal of Section 57(1)(a) of the
Insurance Act 1978” where repeal removes the exemption from regulatory oversight
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by the Authority of the insurance business that is done by either a Friendly Society
or a Trade Union. The Authority believes that all entities carrying on insurance
business should be subject to appropriate prudential regulation and supervision. The
Authority also proposed a ninety day transition period to allow time for any Friendly
Society or Trade Union that was conducting insurance business and wished to
continue to do so to become compliant with the Insurance Act 1978. The
consultation period expired on 30th July 2014 and based on stakeholder feedback, the
Authority is proceeding with the repeal of the said section.
16. The Authority as a housekeeping amendment, is proposing to delete section 57(3)
(d) which makes reference to Section 43(5), which was repealed and is no longer
relevant.
17. The Authority proposes to amend the Schedule to the Act concerning the Minimum
Criteria for Registration. The amendment to the Schedule to the Act introduces
“Corporate Governance” requirements relating to the need for insurers to implement
the appropriate corporate governance policies and procedures. Also, the insurer,
where appropriate, is required to appoint non-executive directors to its board. The
Authority has the ability to assess the insurer’s corporate governance structure and
determine if there is a need to have non-executive directors and/or if the number
appointed is adequate.
III.
HOUSEKEEPING AMENDMENTS TO THE INSURANCE ACCOUNTS
REGULATIONS 1980 AND INSURANCE RETURNS AND SOLVENCY
REGULATIONS 1980
18. The Authority is deleting Line 12 of Schedule II Part VI of the Insurance Accounts
and Regulations 1980 as this line is referenced and incorrectly titled in the Notes
section.
19. To correct a typographical error, the Authority is amending the reference to section
6(6) in Regulations 10 and 12 of the Insurance Returns and Solvency Regulations
1980 to read section 6.
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30 September 2014/DRW
A BILL
entitled
INSURANCE AMENDMENT ACT 2014
TABLE OF CONTENTS
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10
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Citation
Inserts section 15A
Amends section 17A
Amends section 30JA
Amends section 30JB
Amends section 31B
Amends section 32
Amends section 56
Amends section 57
Amendment to Schedule
Consequential amendment
Transitional
Commencement
WHEREAS it is expedient to amend the Insurance Act 1978, and to make consequential
amendments;
Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:
Citation
1
This Act, which amends the Insurance Act 1978 (the “principal Act”), may be cited as
the Insurance Amendment Act 2014.
Inserts section 15A
2
The principal Act is amended by inserting the following new section after section 15—
“Declaration of compliance
15A
(1) Every insurer shall at the time of filing its statutory financial statements under
section 17, also deliver to the Authority a declaration in such form, and with such content as
may be prescribed; declaring that the insurer has, with respect to the preceding financial
year—
(a)
complied with all requirements of the minimum criteria applicable to it;
(b)
failed to comply with or any part of the minimum criteria applicable to it;
(c)
complied with minimum margin of solvency and applicable enhanced capital
requirements as at its financial year end;
(d)
failed to comply with minimum margin of solvency and applicable enhanced
capital requirements as at its financial year end; and
(e)
where a licence is issued by the Authority subject to limitations, restrictions
or conditions; that such have been observed.
(2) All declarations to be delivered under this section shall be signed by two directors
of the insurer.
(3) Where an insurer delivers to the Authority a declaration in accordance with
subparagraphs (1) (b) and (1) (d), it shall, at the time of such delivery; give the Authority
particulars of such failure in writing.
(4) The information required to be included in the declaration of compliance pursuant
to subparagraph (1) shall provide for—
(a)
as early a warning as possible to any person examining the declaration of
compliance of any financial or operational difficulties into which an insurer’s
business has fallen or might appear to fall;
(b)
the basis on which the Authority or any other authority may in good time
take action under this Act or any other statutory provision to exercise any
statutory power available to it for the safeguarding of any element of public
interest involved in or affected by an insurer’s business.
(5)
Where an insurer fails to comply with a duty imposed on it under subsection
(1) it shall be liable to a civil penalty calculated in accordance with
subparagraph (6).
(6)
For each week or part of a week that an insurer fails to comply with a
requirement imposed on it under subsection (1), it shall be liable to a civil
penalty not exceeding—
(i)
$500, in the case of a breach by a Class 1, Class 2, Class 3, Class A or
Class B insurer;
(ii)
$1000, in the case of a breach by a Class 3A, Special Purpose Insurer,
Class C or Class D insurer; or
(iii)
$5,000 in the case of a breach by a Class 3B, Class 4 or Class E
insurer.”.
Amends section 17A
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Section 17A of the principal Act is amended—
(a) by repealing the title of the section and replacing it as follows—
“Additional financial statements prepared in accordance with GAAP and
declaration of compliance”.
(b) in subsection (6) by inserting after the words “copy of” the words “the declaration
of compliance to be filed pursuant to section 15A and”.
Amends section 30JA
4
Section 30JA of the principal Act is amended—
(a) in sub-section (1) (a) by inserting before the word “section;”, the words “or any
transaction relating to a scheme of arrangement under”;
(b) in sub-section (1) (f) by deleting the word “and” and inserting the word “or”;
(c) by inserting after sub-section (1) (i) the following new sub-section:
“(j) the sale of an insurer.”.
Amends section 30JB
5
Section 30JB (4) (b) of the principal Act is amended by deleting the word “fourteen”
and inserting the word “thirty”.
Amends section 31B
6
Section 31B (1) of the principal Act is amended by deleting the words “A Class 3B
insurer and a Class 4 insurer shall not” and replacing it with the words “No Class 3A, Class
3B, Class 4 or Class C, Class D and Class E insurer shall”.
Amends section 32
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Section 32 of the principal Act is amended by inserting a new subsection after
subsection (1) (a) as follows—
“(aa) the business of a registered person which is an insurer is being so conducted
that there is a significant risk that the insurer will be unable to meet its
obligations to policyholders;”.
Amends section 56
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Section 56 of the principal Act is amended—
(a) by repealing the section title and replacing it with the following:
“The Authority may modify certain provisions”;
(b) in subsection (5) (b) by inserting “, 27” after “18B”.
Amends section 57
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Section 57 of the principal Act is amended by repealing subsections (1) (a) and (3) (d).
Amendment to Schedule
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The Schedule to the principal Act is amended by
(a) inserting a new paragraph after paragraph 1 as follows—
“CORPORATE GOVERNANCE
1A
Insurers shall implement corporate governance policies and processes
as the Authority considers appropriate given the nature, size, complexity and risk
profile of the insurer.”
(b) amending paragraph 3 by inserting after the word “operations” the words “;
subject to the power of the Authority to review and require the addition of nonexecutive directors as it may deem appropriate.”.
Consequential amendment
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(a)
Schedule 1 which amends the Insurance Returns and Solvency Regulations
1980 has effect.
(b)
Schedule 2 which amends the Insurance Accounts Regulations 1980 has effect.
Transitional
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(1) A person who is registered under the Friendly Societies Act 1986 or under the
Trade Union Act 1965 to carry on insurance business in accordance with the provisions of
section 57 (1) (a), may continue to carry on such business without a licence under the
Insurance Act 1978 for a period of three months beginning from the date of commencement of
this Act.
(2) Where the person referred to in subsection (1) makes an application for a licence
within three months from the date of commencement of this Act, he may continue to carry on
insurance business without a licence until that application is finally disposed of or withdrawn;
or if the application is refused and an appeal is brought against the refusal, until it has been
determined or withdrawn.
Commencement
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This Act comes into operation on 1 January 2015.
SCHEDULE 1
(Section 14)
AMENDMENTS TO THE INSURANCE ACCOUNTS REGULATIONS 1980
Amends Schedule I
The Insurance Returns and Solvency Regulations 1980 are amended—
(a)
in paragraph 10 (1) by deleting the section reference “6(6)” and inserting
section reference “6”;
(b)
in paragraph 12 (1) by deleting the section reference “6(6)” and inserting
section reference “6”.
SCHEDULE 2
(Section 14)
AMENDMENTS TO THE INSURANCE ACCOUNTS REGULATIONS 1980
Amends Schedule II
The Insurance Accounts Regulations 1980 are amended in Schedule II Part VI by deleting the
words “12. Other underwriting income.” and inserting the words “21. Other insurance
income”.
INSURANCE AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
This Bill seeks to amend the Insurance Act 1978 (the “principal Act”) by making a number of
changes to the regulation of insurance business.
It seeks to address matters relating to aligning Bermuda’s insurance framework to take into
account Solvency II standards and initiatives; for “insurance business” conducted by friendly
societies and trade associations to be brought into the scope of the Act; to revise corporate
governance requirements of insurers to make provision for the introduction and implementation
of corporate policies and procedures; and to address technical matters (“housekeeping issues”)
which have arisen through either internal discussion or external consultation.
1978.
Clause 1 provides a citation for the Bill and defines “principal Act” as the Insurance Act
Clause 2 inserts new section 15A which shall require all registered persons to on an
annual basis, deliver a certificate to the Authority confirming that they either meet or shall not
meet (as the case may be) the minimum criteria for licensing under the Schedule to the Act (; such
criteria is further enhanced via the framework set out under the Insurance Code of Conduct 2010)
and minimum margin of solvency and applicable eligible capital requirements. The new
certification requirements are in line with current, similar statutory requirements for other
financial sectors (such as investment businesses;) and shall also provide for a civil penalty to be
imposed by the Authority in the event of non-compliance.
Clause 3 amends section 17A to make provision for the title of the section to be amended
and that the declaration of compliance now required under new section 15A, to be published.
The section has also been amended to carve out the publication requirement thereunder to apply
to Class 3A and Class E insurers; until such time as the Authority deems appropriate.
Clause 4 amends section 30JA under subsections (1) (a) to expand or clarify requirements
re notification by insurers of those matters considered to be a “material change” of the insurance
business, relating to schemes of arrangement; the sale of insurers. The Authority proposes to
amend subsection (1) (f) to provide clarity re the outsourcing notification requirement; i.e., that
such notification is required when any one of the functions is outsourced by the insurer, as
opposed to when the functions are “collectively”; and also proposes to add a new requirement for
notification to be provided by an insurer upon the sale of an insurer.
Clause 5 amends section 30JB (4) to increase the number of days the Authority has to
provide an insurer with a ‘no objection’ to a notification made by said insurer to effect a material
change, from 14 days to 30 days to reflect the practical administration of this clause.
Clause 6 amends section 31B to apply to Class 3A, Class 3B, Class 4 or Class C, Class D and
Class E insurer insurers as opposed to only Class E (in line with previous consultation undertaken
by the Authority with the Industry).
Clause 7 makes provision for amendment to section 32 to revise subparagraph (1) (e) for
the Authority to be able to also intervene when an insurer is in breach of its minimum margin of
solvency and enhanced capital requirements, as opposed to only when there is a breach by it of
any applicable enhanced capital requirements. Subparagraphs (1) (a) and (3) have been revised to
ensure that the Authority can take such actions available to it under section 32, before the event
of an insolvency or prior to insolvency; to ensure that the interests of client and potential clients
of a registered person are more effectively protected.
Clause 8 makes provision for amendment to section 56 to amend the title of the section
and to provide a power for the Authority to modify requirements of insurers under section 27.
Clause 9 repeals section 57 (1) (a) which has the effect of now requiring friendly societies
and trade associations registered under the Friendly Societies Act 1868 and the Trade Union Act
1965 respectively, to be registered by the Authority under the Act, prior to conducting insurance
business in Bermuda. Previously, such sectors were exempt from the provisions of the Act if they
met certain criteria. However, due to the evolution of regulatory and statutory oversight by the
Authority relating to the conduct of insurance business in Bermuda and the importance of the
jurisdiction in promulgating a regime that is both prudent, responsible and takes into
consideration the protection of policyholders; the Authority is of the view that the current
provisions should be repealed and the sectors bought into scope.
Clause 10 makes provision for the Authority revise the Schedule to the Act “Minimum
Criteria for Registration” to delete the current requirements “Business to be conducted by at least
two individuals” and “Composition of Board of Directors” and introduce “Corporate Governance”
requirements relating to the composition of the Board and the requirement for insurers to
introduce corporate governance policies and procedures. The measures introduced hereunder
are similar to measures already incorporated under similar financial sector legislation
administered by the Authority; i.e., the Trusts (Regulation of Trust Business) Act 2001, The
Investment Business Act 2003, the Banks and Deposit Companies Act 1999, the Corporate Service
Provider Business Act 2010 and the Investment Funds Act 2006. The introduction of such
requirements will now ensure that the Authority is administering a consistent corporate
governance regime across all sectors.
Clause 11 makes provision for consequential amendments to the Insurance Accounts
Regulations 1980 and the Insurance Returns and Solvency Regulations 1980.
Clause 12 provides for the commencement date of the Act.